Citation Nr: 0413906
Decision Date: 05/28/04 Archive Date: 06/02/04
DOCKET NO. 03-31 894 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to service connection for porphyria cutanea tarda
(PCT).
REPRESENTATION
Appellant represented by: New York State Division of
Veterans' Affairs
ATTORNEY FOR THE BOARD
D. Dean, Counsel
INTRODUCTION
The appellant had active service from August 1966 to May
1968, including service in Vietnam.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2002 rating determination
by the Buffalo, New York, Regional Office (RO) of the
Department of Veterans Affairs (VA).
REMAND
The appellant seeks service connection for PCT which was not
diagnosed until the mid-1990's. The appellant maintains that
he had symptoms of PCT for many years before the diagnosis
was made. In February 2002, the RO wrote to the appellant's
private physician, Dr. Gabryel, and requested that he submit
a report of his findings and diagnoses pertaining to the
appellant. Dr. Gabryel responded in a letter received in
March 2002 in which he stated that the appellant had been
diagnosed with PCT.
On April 5, 2002, the RO wrote a letter to the appellant in
satisfaction of the notification and duty to assist
provisions of the Veterans Claims Assistance Act (VCAA) of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). In
response, the appellant submitted a release form (VA Form 21-
4142(JF)) to enable the RO to obtain Dr. Gabryel's medical
records in support of his claim. He commented that Dr.
Gabryel had been his personal physician since the 1970's and
that no one would have more information on the appellant's
past health than Dr. Gabryel.
It does not appear from the current evidentiary record that
the RO ever sought to obtain the appellant's medical records
dating back to the 1970's from Dr. Gabryel, or that Dr.
Gabryel was ever asked to state whether the appellant was
manifesting symptoms of PCT within one year of his return
from Vietnam in 1968.
In light of these circumstances, this appeal is remanded to
the RO (via the Appeals Management Center in Washington,
D.C.) for the following further actions:
1. The RO should issue a letter to the
appellant providing him with the notice
required under 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b) pertaining to the
current claim, to include a request that
he submit any pertinent evidence in his
possession and medical evidence, such as
a statement from a physician, supporting
the contention that the veteran
manifested PCT within one year of his
departure from Vietnam.
2. The RO should also write to Dr.
Gabryel and ask him to provide copies of
all records in his possession pertaining
to treatment or evaluation of the veteran
for any symptoms attributable to PCT.
3. The RO should take appropriate steps
to obtain a copy of any pertinent
evidence identified but not provided by
the appellant.
4. If the RO is unable to obtain a copy
of Dr. Gabryel's medical records or of
any other pertinent evidence identified
but not provided by the appellant, it
should so inform the appellant and his
representative and request them to
provide a copy of the outstanding
evidence.
5. The RO should then undertake any
other development it determines to be
indicated, to include obtaining an
appropriate medical opinion and/or
affording the veteran an appropriate VA
examination if the medical evidence of
record is not sufficient to decide the
claim.
6. After all appropriate development has
been completed, the RO should
readjudicate the current claim on a de
novo basis.
If the benefit sought on appeal is not granted to the
appellant's satisfaction, the appellant and his
representative should be furnished an appropriate
supplemental statement of the case and provided the requisite
opportunity to respond. In accordance with proper appellate
procedures, the case should then be returned to the Board for
further appellate consideration. The appellant need take no
further action until he is otherwise informed, but he may
furnish additional evidence and argument on the remanded
matter while the case is in remand status. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
Shane A. Durkin
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).